Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court

Abstract

This paper begins with an examination of social rights in the South African constitutional drafting process. Following a review of the traditional arguments against the justiciability of socio-economic rights, it then examines the South African Constitutional Court cases addressing social rights, focusing on four primary cases: the antecedent case Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 and three substantive social rights cases, Thiagraj Soobramoney v Minister of Health, KwaZulu-Natal, Government of Republic of South Africa v Irene Grootboom and Others, and Minister of Health v Treatment Action Campaign (No.2) (TAC). This Article then constructs a South African jurisprudence related to socio-economic rights and highlights its distinctive characteristics. The final part of this paper demonstrates why the Court's jurisprudence is best understood as a viable, affirmative jurisprudence of social rights that is typified by a series of internal, self-imposed limitations shaped by the theoretical arguments against the justiciability of such rights.

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